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Williams v. Harmer

United States District Court, D. Nevada

March 27, 2017



          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is Defendant's Amended Motion to Dismiss (ECF No. 10) filed by Defendants Jimmy Harmer (“Harmer”), Tommy Blitsch (“Blitsch”), Jennifer Dodds (“Dodds”), Yvonne Andrade (“Andrade”), Camilla Grantinetti (“Grantinetti”), Laura Sims (“Sims”) (collectively, “Individual Defendants”), [1] and Teamsters Union Local 631 (the “Union”) (collectively, “Defendants”). Pro se Plaintiff Tadaryl Williams (“Plaintiff”)[2] filed a Response (ECF No. 17), and Defendants filed an Amended Reply (ECF No. 20).

         I. BACKGROUND

         This action arises from an alleged preclusion of Plaintiff from rejoining the Union. (Compl. at 4, ECF No. 1). Plaintiff alleges that the Union and its various employees-the Individual Defendants-prevented him from being “reinstated as a Supplemental worker . . . and denied [him] re-entry into the Union.” (Id.). The Individual Defendants are allegedly employees, business agents, and officers of the Union, and the Union is a private-sector labor union representing convention industry workers in the Las Vegas area. (See Id. at 2-3). Plaintiff asserts five counts of First and Fourteenth Amendment violations relating to the Union's failure to reinstate him in 2015, after an “honorable withdrawal” in 2002. (See Id. at 5- 9). Plaintiff also asserts one count of breach of fiduciary duty because Defendants did not reinstate him to the correct job classification, which caused him to receive a lower wage than he was entitled under a previous collective bargaining agreement in effect from the years 2001- 2004. (Id. at 8). Plaintiff further alleges that Defendants “failed to provide fair representation, ” which appears to assert a claim for unfair business practices. (Id.). Plaintiff alleges that he sought relief from the National Labor Relations Board (“NLRB”) for these grievances, but he does not allege any final determination. (Id. at 11). Furthermore, Plaintiff does not allege that he exhausted any other administrative remedies prior to filing this suit.

         Plaintiff seeks to invoke the Court's jurisdiction for these claims under the following statutes: 28 U.S.C. § 1343(a)(3); 42 U.S.C. § 1983; 18 U.S.C. § 371; Title VII of the Equal Employment Opportunities Act (“Title VII”), 42 U.S.C. § 2000e; Labor Management Relations Act (“LMRA”) § 301, codified at 29 U.S.C. § 185; and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, 4.

         Defendants' Motion to Dismiss asserts that the Complaint should be dismissed for the following reasons: (1) the Court lacks subject matter jurisdiction because all alleged sources of jurisdiction are inappropriate; (2) even if subject matter jurisdiction could be established, the statute of limitations for these claims has expired; and (3) the failure to properly serve Defendants has resulted in a lack of personal jurisdiction over all Defendants. (Am. Mot. to Dismiss 2:23-26, ECF No. 10).


         A. 12(b)(1)

         Rule 12(b)(1) of the Federal Rules of Civil Procedure (“FRCP” or “Rules”) permits motions to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It may be described as “facial, ” meaning that it attacks the sufficiency of the allegations to support subject matter jurisdiction. Id. Alternatively, it may be described as “factual, ” meaning that it “attack[s] the existence of subject matter jurisdiction in fact.” Id. When considering a “facial” attack made pursuant to Rule 12(b)(1), as here, a court must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

         B. 12(b)(4)

         A challenge to the form of process, rather than the manner of its service, is properly raised under FRCP 12(b)(4). See, e.g., Wasson v. Riverside County, 237 F.R.D. 423, 424 (C.D. Cal. 2006) (citations omitted). A Rule 12(b)(4) motion challenges noncompliance with the provisions of Rule 4 or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of a summons. Id. Under Rule 4, a summons must:

(A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff's attorney or-if unrepresented-of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal.

Fed. R. Civ. P. 4(a). Further this Rule requires that “[a] summons must be served with a copy of the complaint.” Fed.R.Civ.P. 4(c)(1).

         C. 12(b)(5)

         A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4. Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Rule 12(b)(5) authorizes a defendant to move for dismissal due to insufficient service of process. The plaintiff has the burden of demonstrating that service of process was valid. R. Griggs Grp. Ltd. v. Filanto Spa, 920 F.Supp. 1100, 1102 (D. Nev. 1996). If service of process is insufficient, the court has discretion to dismiss an action or to simply quash service. See Fed. R. Civ. P. 4(m); SHJ v. Issaquah School Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006); Filanto Spa, 920 F.Supp. at 1102. Actual notice of a lawsuit ...

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